delivered the opinion of this court.
This is an appeal from the Superior Court of Baltimore city.
The action was brought in the court below, to recover damages for an injury alleged to have been sustained by the plaintiff from failing into a hole or vault opened under the pavement on a public street in the city of Baltimore, appurtenant to a lot fronting on said street, belonging to the appellant.
The declaration contained two counts, the first of which alleged, that the defendant (appellant) being possessed of a certain messuage, &c., “wrongfully and unjustly made and opened a certain hole leading to the vault and sink, under the said street, belonging to the same messuage and premises, and unjustly and wrongfully placed and kept a weak and insufficient covering upon the hole leading to the said vault and sink, by means and consequence of which said wrongful', unjust and negligent, and improper conduct of the said defendant,” the said plaintiff “ necessarily and unavoidably slipt and fell into said vault,” &c.
The second count alleged, that the defendant being "the owner and possessor” of the messuage referred to, situate on the public street therein described, and upon which there was “ a certain hole opening into a certain vault or sink under said street, which the owner and possessor, and in the possession, *115occupation, use and enjoyment of the said messuage, “ opened or caused-to be opened, and negligently closed the said vault or sink and the said hole,” by means whereof, &c., the plaintiff " necessarily slipt and fell into the said vault” & c.
The defendant below plead not guilty, upon which the issue was joined.
At the trial the plaintiff offered evidence by the witness Sprague, that defendant was the owner of the messuage described in the declaration; that he first knew the property in 1850, when he rented a room in the house from William C. Peters. And by Amos, another witness, that he was one of the hands who cleaned the sewer in question with three other hands; that after cleaning it, in putting back the stone covering its mouth, said stone broke in half, although they were careful in letting it down; and by Andrews, that he had hold of the stone, and when letting it down he let go of it to avoid mashing his fingers, and it then broke. That when taking it up it was so firm that four men had to raise it with picks. It was about 2|- inches thick and 2\ feet square. A plank was put over it, but not more than a foot wide. That the stone had not then fallen in; that witness went back in the afternoon, when there was neither plank nor stone over tire sewer, and that a new stone was brought about two hours afterwards. This was in August 1852.
The plaintiff further offered in evidence by Lindley Ellicott, that on the evening of some day in August 1852, hearing screams from Bank Lane, he proceeded to this sink, in which he found the plaintiff, who was withdrawn therefrom with ropes, and that there was no plank over the hole. That this occurred between five and seven o’clock in the evening.
He likewise offered evidence by said witness, that the plaintiff at this time was in the employment of Dr. Davis, who resided on St. Paul’s street, whose carriage-house door was veiy near to this sewer, which was on Bank Lane, and it was necessary for the plaintiff to pass and repass over the vault of the sewer, and that the pavement under which it was opened was very narrow.
He then offered evidence by Drs. Smith and Jenkins of the ■ nature and extent of the injury inflicted upon him.
*116The defendant, in the progress of the cause, offered in evidence the agreement of lease between himself and W. O. Peters, by which it appeared the property was leased for the term of seven years, Peters agreeing to pay therefor a certain annual rent; but in no manner stipulating to keep the demised premises in repair, nor to cause to have kept cleaned the sink. He also proved that possession of the property was taken by Peters between the months of January and April 1850.
The plaintiff gave in evidence the ordinances of the mayor and city council of Baltimore, No. 49 of 1838, and No. 16 of 1850, and having proved the vault was made in 1849, rested his case.
On this state of proof the defendant submitted to the court two prayers, both of which were rejected, and in lieu of them an instruction was given by the court of its own motion.
Before proceeding to notice the objections urged to the action of the court in regard to the instructions asked and given, we will notice one founded on the pleadings. It is said on behalf of the defendant, that the counts in the declaration relate to the alleged negligence of the defendant, and not to an injury arising from a nuisance, and therefore, under the proof in this cause, there could be no recovery. In reply to this objection, it is but necessary to say, there is no question in regard to the pleadings presented to us by the record. In the cases of Leopard vs. Ches. & Ohio Canal Company, 1 Gill, 227; Stockton vs. Frey, 4 Gill, 421; Brooke vs. Waring, 7 Gill, 5, and in the case of Dorsey vs. Dashiell, 1 Md. Rep., 207, it is distinctly laid down, that where no question in regard to the pleadings was presented to the court below, none can be considered by this court. In the case, now before us neither the prayers of the defendant, nor the instruction given by the court, make any allusion to the pleadings, and, consequently, under the decisions to which we have referred, they cannot now be considered.
The ordinances of the mayor and city council of Baltimore, already referred to, specify the manner in which vaults shall be constructed, and that permission to construct them shall be first obtained from the municipal authorities.
*117It was not pretended at the trial below, nor has it been before us, that there had been a compliance with the requisitions of the ordinances; but, it is contended, as it was in the Superior Court, that this circumstance cannot, in anywise, affect the defendant in this proceeding. We think otherwise. The doing of an unlawful act subjects the doer to every consequence which flows from it. This is a principle of universal operation, and founded in good sense and public justice. He stands in a different light from one who does a legal act but does it so imperfectly that it may occasion injury. In the one case there is a positive and reckless contempt and defiance of the commands of the law, whilst, in the other, a mere carelessness, which, however culpable, is free from the charge of .wilfulness.
The first prayer of the defendant is based on the idea, that if the jury should find from the evidence the sewer was constructed well and securely before the accident, and that the property at the time of the accident was in the possession of another than the defendant, then there can be no recovery in this case. The second proceeds on the hypothesis, that if the juiy shall find the defendant had previously to the accident leased the premises, and at the time of the occurrence it was actually in the possession of another, then the defence is complete, notwithstanding all other circumstances in the cause.
A careful examination of the authorities satisfies us there is no foundation for either of the prayers. We have consulted them in the original reports, but inasmuch as they are very clearly brought together and discussed, both by court and counsel, in the case of Rich vs. Basterfield, 4 Manning, Granger & Scott, (56 Eng. Com. Law Rep., 784,) we will content ourselves with a reference to that case.
After a full review of all the cases, and that too after a second argument, we understand the court to deduce, at least, the two following principles from the numerous adjudications to which reference is had: — First. That where property is demised, and at the time of the demise it is not a nuisance, and becomes so only by the act of the tenant while in his possession, and injury happen during such possession, the owner *118is not liable; but, Second. That where the owner leases premises which are a nuisance, or must in the nature of things become so by their user, and receives rent, then, whether in or out of possession, he is liable.
We are of opinion, however, that the instruction of the court, actually given to the jury, was defective, in not requiring the jury to find that the plaintiff could not have avoided the accident by the exercise of reasonable caution and care. This is essential to the right of recovery of the plaintiff. Irwin vs. Sprigg, 6 Gill, 200.
Judgment reversed and procedendo awarded.